Guidance Note 8 - EPBC Act Delegations: Section 515 of the EPBC Act and regulation 19.01A of the EPBC Act Regulations
About the guidance note
This Guidance Note is intended for use by staff of the Department of Sustainability, Environment, Water, Population and Communities. It should not be relied upon by any other person. This Guidance Note does not represent legal or professional advice. The policies and procedures included in this Guidance Note are intended to serve as guidance only and should be applied consistently with the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) (EPBC Act) and the Environment Protection and Biodiversity Conservation Regulations 2000 (Cwlth) (EPBC Regulations). To the extent of any inconsistency, the EPBC Act and EPBC Regulations will prevail over this Guidance Note. If Departmental officers consider that this Guidance Note may be inconsistent with the EPBC Act or the EPBC Regulations, please contact the Legislation Policy Section. This guidance note may be subject to change at any time.
To 'delegate' is to give powers or functions to another person to act as an agent. The agent can then exercise the power or function in their own right.
Section 515 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for the Minister responsible for administering the EPBC Act (Minister) and the Secretary of the Department to delegate all or any of their powers or functions under the EPBC Act to an officer or employee in the Department or the Director of National Parks by signed instrument. The Director of National Parks may also delegate all or any of the Director's powers or functions under the EPBC Act to a person by sealed instrument.
Similarly, regulation 19.01A of the Environment Protection and Biodiversity Conservation Regulations 2000 (EPBC Regulations) provides that the Minister and the Secretary of the Department may delegate any or all of their powers or functions under the EPBC Regulations to an employee of the Department. The Director of National Parks may also delegate all or any of the Director's powers or functions under the EPBC Regulations to a person by sealed instrument.
This Guidance Note provides an outline of the current Instrument of Delegation in relation to the Minister's powers and functions under subsection 515(1) of the EPBC Act and regulation 19.01A(1) of the EPBC Regulations , which was signed by former Minister Garrett on 1 December 2009 (the delegations). This instrument replaced all previous instruments of delegation.
The Secretary also has made delegations under subsection 515(2) of the EPBC Act and regulation 19.01A(3) of the EPBC Regulations (the current delegation instrument is dated 7 June 2010) and the Director of National Parks has a number of instruments of delegation, made under subsection 515(3) of the EPBC Actand regulation 19.01A(5) of the EPBC Regulations .
The delegations are divided into three parts:
- Schedule 1 - EPBC Act;
- Schedule 2 - EPBC Regulations; and
- Schedule 3 - Guidelines for delegated decision making.
The delegations operate in a 'cascading' manner.
As with the other guidance notes on issues relating to the operation of the EPBC Act, this guidance note refers and is directed towards 'departmental officers' involved in the preparation of material for decisions by the Minister, and the Minister's delegates within the department. However, except where there is a reference in the guidance notes to the exercise of a delegated power by a Ministerial delegate, references to departmental officers do not imply that these officers will make a decision under the EPBC Act.